What are employer’s rights with a worker returning from FMLA?

On Behalf of Dunlap Fiore, LLC |

Louisiana workers who are eligible to take advantage of the benefits offered through the Family and Medical Leave Act are perfectly within their rights to do so provided the various criteria for eligibility are met. However, the employer’s perspective is often lost in the shuffle. While employees certain have rights, so too do employers. If there is an issue with FMLA, many people are quick to cite employment law and try to file a legal case. But employers have the right to protect from lawsuits if they are working within the laws of the FMLA. Understanding when a case is frivolous and unfair is imperative for a business that is facing allegations of wrongdoing.

The worker who returns is required to have the same job that he or she left or one that is nearly identical. If that is not possible, then the new job must: involve the same or similar duties as the previous job with the same status and responsibilities; the same amount of effort, skill, authority and responsibility must be necessary; the pay must be identical as are the benefits; and the same work schedule must be provided at the same or a location that is nearby.

Employers are protected if the employee used all the available leave under FMLA and did not return to work. When this happens, the employer can hire someone else and does not have to give a job to the person who was on leave. It is also important to understand the nuance of these cases. Key employees are not automatically guaranteed their former job once they return from time off under FMLA. A key employee will be someone who received salary and is one of the 10 percent highest paid workers for that employer within 75 miles of that site. A key employee might believe that he or she was confronted with an employment law violation if the employer does not give the job back once the FMLA is over, but that is not the case.

Allegations of FMLA violations can place a stain on a company. When there are claims that a company violated employment law based on FMLA, they need to have a qualified attorney to craft a strong defense.

Source: dol.gov, “The Employee’s Guide to the Family and Medical Leave Act — Returning to Work, page 14,” accessed on Sept. 12, 2017